| Ross v Sherman |
| 2008 NY Slip Op 09980 [57 AD3d 758] |
| December 16, 2008 |
| Appellate Division, Second Department |
| Alan J. Ross et al., Respondents, v Steven Sherman et al.,Appellants. |
—[*1] Tarshis, Catania, Liberth, Mahon & Milligram, PLLC, Newburgh, N.Y. (Nicholas A. Pascale ofcounsel), for respondents.
In an action, inter alia, for a judgment declaring that the plaintiff Lina, LLC, is the owner of certainreal property, the defendants appeal, as limited by their brief, from so much of an order of the SupremeCourt, Orange County (Giacomo, J.), entered January 10, 2008, as granted those branches of theplaintiffs' motion which were for summary judgment dismissing their counterclaims.
Ordered that the order is affirmed insofar as appealed from, with costs.
The Supreme Court properly granted that branch of the plaintiffs' motion which was for summaryjudgment dismissing the first, second, and sixth counterclaims asserted by the defendant StevenSherman. The first, second, and sixth counterclaims asserted by Sherman were predicated on anallegation that the plaintiffs breached the terms of the parties' settlement agreement by refusing an offermade by one or both of the defendants to purchase the subject property for the sum of $850,000.Contract language which is clear and unambiguous must be enforced according to its terms (seeW.W.W. Assoc. v Giancontieri, 77 NY2d 157, 162 [1990]; McCabe v Witteveen, 34 AD3d 652 [2006]; Manzi Homes, Inc. v Mooney, 29 AD3d748 [2006]). Contrary to the defendants' contention, the provision of the settlement agreementstating that the subject property "shall not be sold for an amount less than $850,000," did not requirethe plaintiffs to actually accept an offer in the minimum amount. Furthermore, by submitting evidenceindicating that the market value of the property exceeded $850,000, the plaintiffs made a prima facieshowing that their refusal of the defendants' offer did not constitute a breach of the agreement's impliedcovenant of good faith and fair dealing (seeTepper v Cablevision Sys. Corp., 19 AD3d 585, 586 [2005]). In opposition, the defendantsfailed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 322[1986]).
The Supreme Court also properly granted that branch of the plaintiffs' motion which was forsummary judgment dismissing the second counterclaim asserted by the defendant Walden Oaks, Inc.,which sought to recover on an account stated. "An account stated assumes the existence of someindebtedness between the parties, or an express agreement to treat a statement of debt as an accountstated" (Simplex Grinnell v Ultimate Realty,LLC, 38 AD3d 600, 600 [2007]). "A cause of action alleging an account stated cannot beutilized simply as another means to attempt to collect under a disputed contract" (id.). Insupport of their motion, the plaintiffs established that no agreement existed between the parties " 'to anaccount based upon prior transactions between them with respect to the correctness of the accountitems and balance due' " (Erdman Anthony & Assoc. v Barkstrom, 298 AD2d 981, 981[2002], quoting Jim-Mar Corp. v Aquatic Constr., 195 AD2d 868, 869 [1993]). Inopposition, the defendants failed to raise a triable issue of fact as to the existence of such an agreement.Under these circumstances, the assertion of a counterclaim to recover damages on an account statedwas an impermissible attempt to recover on a disputed contract (see Simplex Grinnell v Ultimate Realty, LLC, 38 AD3d 600 [2007]).
Furthermore, the court properly granted that branch of the plaintiffs' motion which was forsummary judgment dismissing the counterclaims which sought an award of an attorney's fee, costs, andthe imposition of a sanction upon them. The plaintiffs' conduct was not frivolous within the meaning of22 NYCRR 130-1.1.
The defendants' remaining contentions are without merit. Rivera, J.P., Angiolillo, Eng and Belen,JJ., concur.